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19CA0964 Peo v Balog 10-07-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0964

Jefferson County District Court No. 17CR4178

v.

Stephen Joseph Balog,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Announced October 7, 2021

Philip J. Weiser, Attorney General, Wendy J. Ritz, First Assistant Attorney

General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sarah Spears, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1

Stephen Joseph Balog appeals his conviction for felony driving

Recreational Center (rec center) asleep in the driver’s seat of his car,

with the engine running and car stereo playing. The manager of the

rec center saw Balog in his car and tried but was unable to wake

him up. After asking another rec center employee to call 911, the

manager leaned into the car, turned off the engine, and pulled the

key out of the ignition. While turning off the car, the manager saw

a vodka bottle on the front passenger seat of the car with “about a

quarter inch” of liquid in it.

¶ 3

Responding to the 911 call, an Arvada police officer arrived on

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than half of a pint of vodka at 9 a.m. that morning. The officer

his driving privileges may be revoked. Balog refused to take either

the blood or breath test.

¶ 4

Balog was charged with felony DUI – fourth or subsequent

offense. Balog’s defense at trial was that he wasn’t driving but the

jury found him guilty of DUI. After the jury returned its verdict, the

court found, by a preponderance of the evidence, that Balog had

three prior DUI convictions, elevating the misdemeanor DUI

conviction to a felony. The court sentenced Balog to 120 days in

jail, four years of probation, and 48 hours of useful public service.

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 gave a jury instruction that drew “improper attention” to

 found that the People had presented sufficient evidence

 decided the question of whether he had prior

¶ 6

paramedic that he wasn’t driving. We discern no error.

¶ 8

During trial, the manager of the rec center testified regarding

her interaction with Balog after she discovered him in the parking

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lot. On direct examination, she was asked about what Balog said to

 the vodka bottle in the car was “not the first one he had”;

 he’d “gone through a divorce, lost custody of his kids, and

 he’d spent the previous night in the cemetery; and

 he’d come to the rec center to shower.

¶ 9

On cross-examination, the rec center manager was asked

about a later conversation she had overheard between Balog and a

paramedic. Specifically, defense counsel asked, “He also stated that

hearsay and was beyond the scope of direct examination. Defense

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2. Standard of Review

discretion. Dunlap v. People, 173 P.3d 1054, 1097 (Colo. 2007). “A

trial court abuses its discretion when its ruling is (1) manifestly

arbitrary, unreasonable, or unfair or (2) based on an erroneous

COA 117, ¶ 17.

¶ 11

On appeal, Balog contends that the statement that he wasn’t

driving should have been admitted by the trial court under the rule

of completeness because the statement provides context for Balog’s

earlier statements to the rec center manager regarding how much

he had to drink. The People argue that the rule of completeness

doesn’t apply to oral statements and that even if it did apply to oral

introduced by a party, an adverse party may require him at that

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time to introduce any other part or any other writing or recorded

hearsay” when it is necessary “to qualify, explain, or place into

context the evidence proffered by the prosecution.”

¶ 13

Balog contends that because the prosecution admitted the

various incriminating statements that he made to the rec center

manager, he was entitled to elicit his exculpatory statement to a

paramedic purportedly overheard by the rec center manager. But

his inadmissible hearsay statements to the paramedic (as

purportedly overheard by the rec center manager) don’t qualify,

explain, or place into context his admitted incriminating statements

to the rec center manager.

¶ 14

Balog’s reliance on Short for the proposition that the trial court

erred is misplaced. In Short, the defendant was charged with

sexual assault of a child. During trial, the prosecution introduced a

statement the defendant made to a detective in which he admitted

that it was his understanding that “someone’s abusing [the victim].”

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Id. at ¶ 34. The prosecution, however, opposed the admission of

the portion of the statement admitted at the prosecution’s urging.

Id. at ¶¶ 46-51.

statement. The statements were made by the defendant to the

same person during the same conversations. And the admission of

the first part without the second creates a misleading impression.

The same can’t be said of Balog’s statements. The statements were

made to different people at different times, and the statement to the

paramedic isn’t necessary to complete anything the rec center

employee testified to on direct as to what she observed or heard.

Put differently, nothing about Balog’s later protestation to the

paramedic that he wasn’t driving places in context or explains his

there was nothing unfair or misleading about admitting one set of

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statements and excluding the other since, again, the rec center

Balog next contends that the trial court erred when it admitted

evidence of his refusal to complete voluntary roadside maneuvers,

arguing on appeal that the admission of this evidence violated his

constitutional right to refuse a warrantless search. We reject this

contention.

¶ 17

On the morning of the first day of trial, defense counsel raised

the following objection to the admission of Balog’s refusal to

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[defendant’s] objection to the jury instruction that allowed his

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to take a blood or breath test, along with other evidence, in

asserting plain error.”).

Because Cox is still good law and because we can find no case

decision to give the challenged instruction wasn’t erroneous (and

couldn’t have been obviously so). Accordingly, we reject Balog’s

challenge to Jury Instruction 15.

D. Sufficiency of Evidence of Prior Convictions

Balog next contends that the prosecution failed to prove he

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that descriptions of the defendant in the records matched Balog.

viewed as a whole and in the light most favorable to the

prosecution, is substantial and sufficient to support a conclusion

by a reasonable person that the defendant” is the person who was

convicted of the prior offenses. People v. Carrasco, 85 P.3d 580,

582 (Colo. App. 2003). The prosecution must be given the benefit of

every reasonable inference that could fairly be raised by the

evidence. Id. at 582-83.

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¶ 37

At trial, Balog’s prior convictions were treated as a sentence

burden of proof, “the prosecution need only prove the existence of

prior conviction facts by a preponderance of the evidence”).

Because the preponderance of the evidence standard applied at

trial, the prosecution was required to prove that it was more

probable than not that Balog was the person convicted of the prior

offenses. People v. Garner, 806 P.2d 366, 370 (Colo. 1991) (“A fact

is established by a preponderance of the evidence when, upon

consideration of all the evidence, the existence of that fact is more

probable than its nonexistence.”).

At trial, the prosecution presented the following records of

Balog’s prior convictions, which the court admitted into evidence:

 a certified sentencing order and register of actions for a

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 a certified sentencing order and register of actions for a

¶ 39

Each record included defendant’s full name (Stephen Joseph

Balog), a date of birth matching Balog’s, and descriptions of the

defendant’s sex, race, height, weight, and hair color that matched

the biographical information for Balog contained in the complaint

and information, as well as his booking photo in this case.

habitual criminal cases, and, under the habitual offender statute,

the prior convictions must be proven by a stricter burden of proof

than applied here at trial. See De Gesualdo, 147 Colo. at 433-34,

364 P.2d at 378 (“Our decisions have consistently required strict

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proof. The philosophical approach to the habitual criminal statute

reasonable doubt that the accused is the person named in the prior

convictions”).

¶ 41

In contrast, all that was required at the time of trial in this

case was proof by a preponderance of the evidence. See, e.g., People

v. Wilson, 2013 COA 75, ¶ 45 (rejecting the contention a sentence

enhancer is akin to a finding that a defendant was a habitual

criminal, “which requires the prosecution to prove, beyond a

reasonable doubt, that the defendant has been previously convicted

of a designated number of felonies”). Reviewing the evidence as a

whole and in the light most favorable to the prosecution, as we

must, the evidence was sufficient to establish, by a preponderance

of the evidence, that Balog had suffered three prior alcohol-related

driving convictions. Accordingly, a failure of the sufficiency of the

evidence isn’t a bar to retrial on the felony DUI charge. But our

analysis here shouldn’t be interpreted as commenting on whether

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De Gesualdo or Cooper would apply to a prior conviction finding

¶ 42

Balog contends that the trial court erred in finding by a

alcohol-related driving convictions rather than submitting the issue

to the jury for it to decide beyond a reasonable doubt. He’s correct.

¶ 43

Indeed, Linnebur requires that we reverse Balog’s felony DUI

conviction. On remand, the district attorney may elect to retry

Balog on the felony charge, and if Balog raises a double jeopardy

objection the district court should address it. Linnebur, ¶ 32. If,

however, the district attorney chooses not to retry Balog on the

error, a reviewing court must identify multiple errors that

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collectively prejudice the substantial rights of the defendant, even if

the three evidentiary errors alleged on appeal, only one had any

bearing on whether he was driving — namely, his contention that

the court erred when it refused to admit his statement to the

paramedic. But we’ve concluded that the trial court didn’t err in

this regard. The other two alleged errors related to whether Balog

was intoxicated; we rejected these contentions. We reject that

together they could amount to cumulative error because, even in

the aggregate, these alleged errors don’t establish “the absence of a

fair trial.” Id. at ¶ 26 (discussing Oaks v. People, 150 Colo. 64, 66,

371 P.2d 443, 446 (1962)). We reach this conclusion because

between Balog’s admissions, the bottles of alcohol found at the

scene, and the witnesses’ observations of Balog, the evidence of

Balog’s intoxication was overwhelming.

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case is remanded to the trial court for further proceedings

JUDGE FOX and JUDGE JOHNSON concur.